Expert Witness Journal Dec 24 - Journal - Page 19
By the time of the trial, the key questions for the court
to determine on this issue became;
however found in favour of Josephine on this point
i.e. that a nod could be (and was) taken as a “positive
and discernible” expression of Carry’s authority.
1. Was the Will revoked by “destruction” i.e. by the
Deceased tearing three quarters and being helped by
her solicitor to tear the rest?; and
Given the trial judge accepted the solicitor’s evidence
generally, it is of no surprise that it was held that Carry
did have the requisite intention to revoke her Will by
the destruction of it.
2. If the Will was revoked by destruction, did the Deceased have the mental capacity to do so;
So the final hurdle for Josephine to overcome was that
of capacity - did Carry have the requisite mental capacity to revoke her Will?
In answering the first question, the court needed to
determine whether Carry had sufficiently destroyed
the Will, whether she authorised her solicitor to complete the destruction (or merely acquiesced in the
same), and whether she had the requisite intention to
destroy the Will by doing so.
The test for capacity for revocation is the same as that
for making a Will i.e. the test in Banks v Goodfellow. It
was of particular note that just moments after helping
Carry complete the tearing of the Will, the solicitor felt
she did not have capacity to make a new Will. The expert in the case (Dr Series) agreed that the first and
second limbs of the test for capacity were met, but his
view was that the third limb (weighing the claims of
potential beneficiaries etc) could not be established.
So at first glance, Josephine would seem to have been
facing an uphill challenge perhaps.
The judgment contains a very useful summary of various points of law in this respect (paras 49 to 60). Of
particular interest is a section of Theobold on Wills which
is worth quoting in full;
“There must be an actual, not a symbolical burning or
tearing of the paper upon which the will is written…Although
s.20, after referring to burning and tearing a will, continues,
"or otherwise destroying the same", these words must be understood as intending some mode of destruction ejusdem
generis, not an act that is not a destroying in the primary sense
of the words… Cutting a will with the intention of revocation
is effective…However, it is not necessary that the will be totally
destroyed, burnt, or torn in pieces. If the will is burnt or torn
in the slightest manner, this will be a good revocation if joined
with the declared intent. As will be seen, the nature of the destruction may be evidence of the necessary intention. But an
unsuccessful attempt to destroy does not revoke… Furthermore
the act of destruction, in order to be effectual must not be left
incomplete. The testator must have done all that he intended
in order to effect destruction. If he is interrupted from completing the act or acts of destruction that he was performing,
there is no revocation."
But….the trial judge rejected Dr Series’ finding in this
respect, and found on the facts that Carry had
weighed up the claims of beneficiaries, and could
therefore meet the third limb of the test in Banks. On
that basis the trial judge was content to find that Carry
did have capacity, albeit in a very narrow window
before she subsequently (probably) lost capacity to
make a new Will.
Another useful reminder that experts do not have the
final say on the issue of capacity, and that their
evidence is only ever part of the picture.
The “Mince Pie Box Will” Case
And finally……
It was submitted in this case that Carry could not have
revoked the Will, as the “destruction” was incomplete
without the assistance of the solicitor. That submission
was ultimately rejected by the court; not surprising
given the wording of s.20 of the Wills Act 1837;
November saw another case that grabbed a lot of
headlines in the media, a case where a man successfully left a large part of his estate to charity, despite his
Will being partially written on the back of a mince pie
box….with the other half of the Will being on the back
of a box of frozen battered fish!
"…no will or codicil, or any part thereof, shall be revoked
otherwise than as aforesaid, or by another will or codicil executed in manner herein-before required, or by some writing
declaring an intention to revoke the same and executed in the
manner in which a will is herein-before required to be executed, or by the burning, tearing, or otherwise destroying the
same by the testator, or by some person in his presence and by
his direction, with the intention of revoking the same."
Unsurprisingly in the circumstances, the deceased had
not used solicitors to prepare his Will. Instead, he had
signed one of the pieces of cardboard, and then
the day before he died he asked two neighbours to
witness the signature.
However, when subsequently asked, the attesting
witnesses could only recall seeing one of the two pieces
of card, not both.
Josephine would still however need to show that Carry
had given the solicitor the authority to complete the
tearing of her Will.
The Probate Registry (quite rightly it is suggested)
refused to admit the Will to Probate on the basis only
one of the two “pages” had been signed and witnessed. The Registry was content to admit one page
of the Will to probate, but the gifts on the unsigned
and unwitnessed page would fail, without approval
from the Court. A large charitable gift to Diabetes UK
was contained on this unsigned page.
On that issue, the court accepted the solicitor’s
evidence that “when Carry could not complete the tearing,
Mrs Webb looked at her and asked if she could help her tear
the remainder. Carry, looking directly at Mrs Webb, nodded.
Mrs Webb placed her hands upon Carry's and helped her so
the tearing was completed.” It was submitted by David
and Angela’s counsel that there was no authority
that a “nod” could be sufficient “direction”. The court
EXPERT WITNESS JOURNAL
17
DECEMBER 2024
